EMPLOYMENT AGREEMENT ADDENDUM
THIS EMPLOYMENT AGREEMENT ADDENDUM, effective as of October 1,
1997, is attached to, and an integral part of, that certain Employment
Agreement (the "Employment Agreement") entered into by and between Dade
International Inc., a Delaware corporation (the "Company") and Xxxxx
Xxxxxx ("Executive") as of the date hereof. Capitalized terms used in
this Addendum without definition shall have the meaning given to such
terms in the Employment Agreement.
W I T N E S S E T H:
THAT, WHEREAS, the Company (it being acknowledged and agreed by
each of the parties hereto, that for the purposes of this Employment
Agreement Addendum, the "Company" shall be deemed to include each of the
Company's predecessors and their affiliates, including, without
limitation, Behring Diagnostics Inc.) is in the worldwide business of,
among other things, manufacturing and marketing instruments and related
products and services for the in vitro diagnostics testing market; and
WHEREAS, pursuant to the Employment Agreement, Executive will be
employed by the Company to render services to the Company and to make
contributions to the success and growth of the Company; and
WHEREAS, Executive desires that Dade Behring Holdings, Inc., a
Delaware corporation which owns 100% of the issued and outstanding
capital stock of the Company ("Holding") execute a certain Executive
Agreement dated as of the date hereof (the "Executive Agreement")
setting forth the terms pursuant to which Holding is to grant Executive
certain stock options to purchase certain shares of Holding's capital
stock, pursuant to the Executive Agreement and the terms and conditions
of Holding's 1997 Executive Stock Purchase and Option Plan; and
WHEREAS, the Company is not willing to execute the Employment
Agreement and Holding is not willing to execute the Executive Agreement
unless Executive executes this Employment Agreement Addendum
contemporaneously therewith; and
WHEREAS, the Company and Executive mutually desire to enter into
this Employment Agreement Addendum to specify each other's rights and
obligations with respect to Conflicts of Interest, Confidentiality, Non-
Competition and Intellectual Property Rights, all as more fully provided
herein below.
NOW, THEREFORE, is consideration of the premises set forth above,
Executive's employment by the Company pursuant to the terms and
conditions of the Employment Agreement, the covenants and agreements set
forth in the Executive Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. Conflicts of Interest. Executive will exert his best efforts
in the performance of his duties as an employee of the Company and will
remain loyal to the Company during the term of his employment with the
Company. Executive represents, warrants and agrees that he is not
presently engaged in, nor shall he, during the term of his employment
with the Company, enter into any employment or agency relationship with
any third party whose interests might conflict with those of the
Company. Executive further represents, warrants and agrees that he does
not presently, nor shall he, during the term of his employment with the
Company, possess any significant interest, directly or indirectly,
including without limitation through Executive's family or through
organizations or trusts controlled by Executive, in any third party
whose interest might conflict with those of the Company.
2. Confidentiality. (A) As used herein, the term "Confidential
Information" shall mean any and all information, including, but not
limited to, all data, compilations, programs, devices, strategies,
concepts, ideas or methods concerning or related to (i) the Company's
financial condition, results of operations, and amounts of compensation
paid to officers and employees; (ii) marketing and sales programs of the
Company and the terms and conditions (including prices) of sales and
offers of sales of products and/or services by the Company; (iii) the
terms, conditions and current status of the Company's agreements and
relationships with any customers, suppliers or patients; (iv) the
identities and business preferences of the Company's actual and
prospective customers and suppliers or any employee or agent thereof
with whom the Company communicates; (v) the trade secrets and know-how,
manufacturing processes and techniques, regulatory approval strategies,
computer programs, data, formulae, and compositions, service techniques
and protocols, new product designs and other skills, ideas, and
strategic plans possessed, developed, accumulated or acquired by the
Company; (vi) any communications between the Company, its officers,
directors, shareholders or employees, and any attorney retained by the
Company for any purpose, or any person retained or employed by such
attorney for the purpose of assisting such attorney in his or her
representation of the Company; and (vii) any other matter or thing,
whether or not recorded on any medium, (a) by which the Company derives
actual or potential economic value from such matter or thing being not
generally known to other persons or entities who might obtain economic
value from its disclosure or use, or (b) which gives the Company an
opportunity to obtain an advantage over its competitors who do not know
or use the same.
(B) Executive acknowledges and agrees that the Company is engaged
in the highly competitive in vitro diagnostics testing instruments and
related products and services industry, and has expended, or will
expend, significant sums of money and has invested, or will invest, a
substantial amount of time to develop and use, and maintain the secrecy
of, the Confidential Information. The Company has thus obtained, or
will obtain, a valuable economic asset which has enabled or will enable
the Company to develop an extensive reputation and to establish long-
term business relationships with its suppliers, customer and patients.
If such Confidential Information were disclosed to another person or
entity or used for the benefit of anyone other than the Company, the
Company would suffer irreparable harm, loss and damage. Accordingly,
Executive acknowledges and agrees that, unless the Confidential
Information becomes publicly known through legitimate origins not
involving an act or omission by Executive:
(i) the Confidential Information is, and at all times
hereafter shall remain, the sole property of the Company;
(ii) Executive shall use his best efforts and the utmost
diligence to guard and protect the Confidential Information
from any unauthorized disclosure to any competitor, supplier
or customer of the Company or any other person, firm,
corporation or other entity;
(iii) unless the Company gives Executive prior express
written permission, during his employment and thereafter,
Executive shall not, use for his own benefit, or divulge to
any competitor, supplier or customer or any other person,
firm, corporation, or other entity, the Confidential
Information which Executive may obtain, learn about, develop,
or be entrusted with as a result of Executive's employment by
the Company; and
(iv) except in the ordinary course of the Company's business,
Executive shall not seek or accept any Confidential
Information from any former, present, or future employee of
the Company.
(C) Executive also acknowledges and agrees that all documentary
and tangible Confidential Information including, without limitation,
such Confidential Information as Executive has committed to memory, is
supplied or made available by the Company to the Executive solely to
assist him in performing services for and on behalf of the Company.
Executive further agrees that after his employment with the Company is
terminated for any reason:
(i) Executive shall not remove from Company property, and
shall immediately return to the Company, all documentary or
tangible Confidential Information in his possession, custody,
or control and not make or keep any copies, notes, abstracts,
summaries, tapes or other record of any type of Confidential
Information; and
(ii) Executive shall immediately return to the Company any
and all other Company property in his possession, custody or
control including, without limitation, any and all keys,
security cards, passes, credit cards, and marketing
literature.
3. Non-Competition. (A) Executive hereby agrees that unless his
employment by the Company shall be terminated by reason of material
breach by the Company of its obligations to Executive under the
Employment Agreement, Executive will not, prior to the expiration of one
(1) year after the date he shall cease to be employed by the Company,
engage in or become directly or indirectly interested in any
proprietorship, partnership, trust or corporation (whether as owner,
partner, trustee, beneficiary, stockholder, officer, director, employee,
consultant, lessor, lessee or otherwise) which shall engage anywhere
within such geographic limits as the Company and such entity are, or
would be, in actual competition, in any business activity competitive
with the business activities of the Company, including, without
limitation, in connection with research or development, production,
distribution, marketing, providing or selling of products, processes, or
services, in existence or under development, which are substantially the
same, may be substituted for, or applied to substantially the same end
use in the products, processes or services with which Executive works
during the time of his employment with the Company or about which
Executive acquires Confidential Information; provided that nothing
herein will prevent Executive from owning in the aggregate not more than
5% of the outstanding stock of any class of a corporation which is
publicly traded, so long as Executive has no participation in the
management of such corporation.
(B) Executive further agrees that he will not, prior to the
expiration of one (1) year following the date of termination of
Executive's employment for any reason, directly or indirectly, or by
action in concert with others, induce or influence, or seek to induce or
influence any person who is engaged by the Company as an employee,
agent, independent contractor or otherwise, to terminate his/her/its
employment or engagement, nor shall Executive, directly or indirectly,
employ or engage, or solicit for employment or engagement, or advise or
recommend to any other person or entity that such person or entity
employ or engage or solicit for employment or engagement, any person or
entity employed or engaged by the Company.
4. Intellectual Property Rights. (A) As used in this Employment
Agreement Addendum, the term "Inventions" shall mean and include all
procedures, systems, machines, methods, processes, uses, apparatuses,
compositions of matter, designs or configurations, computer programs of
any kind, discovered, conceived, reduced to practice, developed, made,
or produced, or any improvements to them, and shall not be limited to
the meaning of "Invention" under the United States patent laws.
Executive agrees to disclose promptly to the Company any and all
Inventions, whether or not patentable and whether or not reduced to
practice, conceived, developed or learned by Executive during his
employment with the Company or during a period of one hundred twenty
(120) days after the termination thereof, either alone or jointly with
others, which relate to or result from the actual or anticipated
business, work, research, investigations, products, or services of the
Company, or which result to any extent, from use of the Company's
premises or property. Executive acknowledges and agrees that the
Company is the sole owner of any and all property rights in all such
Inventions, including, but not limited to, the right to use, sell,
license or otherwise transfer or exploit the Inventions, and the right
to make such changes in them and the uses thereof as the Company may
from time to time determine. Executive agrees to disclose in writing
and to assign and Executive hereby assigns, to the Company, without
further consideration, Executive's entire right, title, and interest
(throughout the United States and in all foreign countries) free and
clear of all liens and encumbrances, in and to all such Inventions,
which shall be the sole property of the Company, whether or not
patentable. The Company shall reimburse Executive for reasonable out-of-
pocket expenses, such as travel, food and lodging incurred by Executive
in providing such cooperation. This Section 4 does not apply to any
Inventions:
(i) for which no equipment, supplies, facilities, or
Confidential Information of the Company were used;
(ii) which were developed entirely on Executive's own time;
and
(iii) which do not relate at the time of conception or
reduction to practice to the Company's current business or its
actual or demonstrably anticipated research or development, or
which do not result from any work performed by Executive for
the Company. Executive hereby certifies than he has no
continuing obligations with respect to the assignment of
inventions or rights to Inventions, nor does Executive claim
any previous, unpublished Inventions within the scope of this
Employment Agreement Addendum as his own, except for the
Inventions, if any, which are listed on Exhibit A to this
Employment Agreement Addendum.
(B) Executive hereby acknowledges and agrees that all writings and
other works which may be copyrighted (including computer programs) which
are related to the present or planned business of the Company and are
prepared by Executive during his employment with the Company shall be,
to the extent permitted by law, deemed to be works for hire, with the
copyright automatically vesting in the Company. To the extent that such
writings and works are not works for hire, Executive hereby waives any
and all "moral rights" in such writings and works, and agrees to assign
and hereby does assign to the Company all of Executive's right, title
and interest, including copyright, in such writings and works.
(C) Executive further agrees to reasonably cooperate with the
Company, both during and after employment in obtaining and enforcing
patent, copyrights, trademarks, and other protections of the Company's
rights in and to all such Inventions, writings and other works. Without
limiting the generality of the foregoing, Executive shall, at any time
during or after employment with the Company, at the Company's request,
execute specific assignments in favor of the Company or its nominee of
Executive's interest in any of the Inventions, writings or other works
covered by this Employment Agreement Addendum, as well as execute all
papers, render all assistance, and perform all lawful acts which the
Company considers reasonably necessary or advisable for the preparation,
filing, prosecution, issuance, procurement, maintenance or enforcement
of patents, trademarks, copyrights and other protections, and any
applications for any of the foregoing, of the United States or any
foreign country for any such Inventions, writings or other works, and
for the transfer of any interest Executive may have therein. Executive
shall execute any and all papers and documents required to vest title in
the Company or its nominee in any such Inventions, writings, other
works, patents, trademarks, copyrights, applications and interests.
(D) In the event that Executive is not employed by the Company at
the time Executive is requested to perform any act or execute any
document under paragraph 4(C), the Company shall pay to Executive fifty
dollars ($50.00) for the execution of each such document and one hundred
fifty dollars ($150.00) per day for each day or portion thereof spent at
the request of the Company in the performance of acts pursuant to
paragraph 4(C), plus reimbursement for any out-of-pocket expenses
incurred by Executive at the Company's request in such performance.
(E) Executive represents, warrants and agrees that Executive has
disclosed to the Company all continuing obligations which Executive has
with respect to the assignment of Inventions to any previous employers,
and Executive claims no previous unpatented Inventions as his own,
except for those which have been reduced to practice and which are shown
on Exhibit A hereto. Executive acknowledges and agrees that the Company
does not seek any confidential information which Executive may have
acquired from a previous employer, and Executive will not disclose any
such information to the Company.
5. Remedies. Executive acknowledges and agrees that the business
of the Company is highly competitive, and that violation of any of the
covenants provided for in this Employment Agreement Addendum would cause
immediate, immeasurable and irreparable harm, loss and damage to the
Company not adequately compensable by a monetary award. Accordingly,
Executive agrees, without limiting any of the other remedies available
to the Company, that any violation of said covenants, or any of them,
may be enjoined or restrained by any court of competent jurisdiction,
and that any temporary restraining order or emergency, preliminary or
final injunctions may be issued by any court of competent jurisdiction
without notice and without bond.
6. Miscellaneous.
(A) Executive will permit the Company and its agents to use and
distribute any photographs which are taken of Executive during his
employment with the Company as often as desired by the Company for any
lawful purpose. Executive hereby waives all rights of prior inspection
or approval and releases the Company and its agents from any and all
claims or demands which Executive may have on account of the lawful use
or publication of such photographs.
(B) The covenants and agreements of Executive in paragraphs 2, 3,
4, and 5 shall survive the termination of Executive's employment with
the Company.
(C) It is the desire of the parties that the provisions of this
Employment Agreement Addendum be enforced to the fullest extent
permissible under the laws and public policies in each jurisdiction in
which enforcement might be sought. Accordingly, whenever possible, each
of the provisions of this Employment Agreement Addendum shall be
construed and interpreted in such a manner as to be effective and valid
under applicable law. If any provision of this Employment Agreement
Addendum or the application of any provision of this Employment
Agreement Addendum to any party or circumstance shall be prohibited by,
or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition without invalidating the
remainder of such provision, any other provision of this Employment
Agreement Addendum, or the application of such provision to other
parties or circumstances.
(E) It is the specific desire of the parties that the provisions
of paragraphs 2 through 4 hereof in particular be enforced to the
fullest extent permissible under the laws and public policies in each
jurisdiction in which enforcement might be sought. Accordingly, without
in any way limiting the general applicability of paragraph 6(C) of this
Employment Agreement Addendum or paragraph 9 of the Employment
Agreement, if any portion of paragraphs 2 through 4 hereof shall ever be
adjudicated as invalid or unenforceable, or if the application thereof
to any party or circumstance shall be adjudicated to be prohibited by or
invalid under such laws or public policies, such paragraph or paragraphs
shall be deemed amended to delete therefrom such portion which was so
adjudicated, such deletion to apply only with respect to the operation
of such paragraph or paragraphs in the particular jurisdiction so
adjudicating and on the parties and under the circumstances as to which
so adjudicated and only to the minimum extent so required, and the
parties shall be deemed to have substituted for such portion so deleted,
words which give the maximum scope permitted under applicable law to
such paragraph or paragraphs.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement Addendum as of the date first written above.
DADE INTERNATIONAL INC.
By:__________________________
Its: ________________________
_____________________________
XXXXX XXXXXX
Exhibit A
NONE
